“Sex” vs “gender identity” as a philosophical belief: Forstater

In Ms M Forstater v CGD Europe & Ors [2019] UKET 2200909/2019, Ms Forstater was sacked as a consultant with the Center for Global Development, Washington DC, and its European arm. She contended that the relationship came to an end because she had expressed “gender-critical” opinions: in outline, that sex is immutable, whatever a person’s stated gender identity or gender expression. She further contended that her gender-critical views were a philosophical belief – and therefore protected under the Equality Act 2010 – and that she had suffered direct discrimination as a result or, alternatively, indirect sex discrimination because her views were more likely to be held by women than by men [3].

The principal issue was whether, in fact, she held a protected philosophical belief within the terms of s.10 Equality Act 2010:

“The Claimant believes that ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’. Being female is an immutable biological fact, not a feeling or an identity. Moreover, sex matters. It is important to be able to talk about and take action against the discrimination, violence and oppression that still affect women and girls because they were born female” [5].

Further, she relied on her lack of belief in the proposition that

“Some people believe that everyone has an inner ‘gender’, which may be the same as or different to their sex at birth, and that gender effectively trumps sex, so that ‘trans men are men’ and ‘trans women are women”’ Typically such proponents believe that that ‘trans women are women’ from the moment they identify as women (if not before)” [5].

(In addition, there was a question as to whether or not she was, in fact, “employed” for the purposes of the 2010 Act.)

Ms Forstater stated that she first became concerned about proposed changes to the Gender Recognition Act 2004 in 2017 “because of proposals for a move to permitting people to self-identify their gender”, started to research the subject in 2017 to 2018 and began to tweet about it in August 2018 [23]. In September 2018 she tweeted:

“UK gov consultation on reforming the #GenderRecognitionAct – proposes to dramatically change scope of the law; from requiring medical diagnosis of gender dysphoria for change of sex on birth certificate, to using the basis of ‘self identification’ […] I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights & protections for vulnerable women & girls […] Some transgender people have cosmetic surgery. But most retain their birth genitals. Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams” [24].

In early October 2018, some of the staff at CDG raised concerns about some of Ms Forstater’s tweets, alleging that they were “transphobic” – an allegation that she denied [29].

The judgment quotes a long list of tweets and statements by Ms Forstater [34-38] and in her witness statement she stated, inter alia, that

“I do not believe it is incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender” and “I believe that there are only two sexes in human beings (and indeed in all mammals): male and female. This is fundamentally linked to reproductive biology. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy” [39].

Employment Judge Tayler accepted that “these passages reflect core aspects of the Claimant’s belief” [40]. Applying the criteria in Grainger plc v Nicholson [2009] UKEAT 0219/09/0311:

  • he accepted that Ms Forstater genuinely held the view that sex was biological and immutable and that, for her, it was “more than an opinion or viewpoint based on the present state of information available” and related to substantial aspects of human life and behaviour [82]; and
  • on balance, he did not consider that her belief failed to attain the necessary level of cogency, seriousness, cohesion and importance to be protected – “even though there is significant scientific evidence that it is wrong” [83].

However, the absolutist nature of her views was “incompatible with human dignity and the fundamental rights of others” [84]. Denying the right of someone with a Gender Recognition Certificate to be the sex to which he or she had transitioned went against the terms of the Act, which states that the change of sex applies for all purposes:

“Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore” [84: emphasis added].

There was nothing to stop Ms Forstater from campaigning against the proposed revision to the Gender Recognition Act and she was entitled to put forward her opinion that there should be some spaces that are limited to “women assigned female at birth” where it was a proportionate means of achieving a legitimate aim. But that did not mean that her absolutist view was a protected belief for the purposes of the Equality Act [86] and they were not “worthy of respect in a democratic society” [90].

Finally, in respect of the “lack of belief” argument – the belief that Ms Forstater contended she does not hold, that everyone has a gender which may be different from their sex at birth and which effectively trumps sex – though it did not face the same issue of incompatibility with human dignity and the fundamental rights of others, it failed to meet the Grainger criteria [92]. In conclusion:

“Put either as a belief or lack of belief, the view held by the Claimant fails the Grainger criteria and so she does not have the protected characteristic of philosophical belief” [93].

Cite this article as: Frank Cranmer, "“Sex” vs “gender identity” as a philosophical belief: Forstater" in Law & Religion UK, 20 December 2019, https://lawandreligionuk.com/2019/12/20/sex-vs-gender-identity-as-a-philosophical-belief-forstater/
Neil Foster has posted a much more critical note on Law and Religion AustraliaLosing a job for believing that biological sex is immutable.

6 thoughts on ““Sex” vs “gender identity” as a philosophical belief: Forstater

  1. Mackereth and Forstater turn on the same question, whether the belief in the immutability of biological sex, which Mackereth, Forstater, I and countless others share, is worthy of respect.

    I have written both to The Christian Legal Centre, who represented David Mackereth, and to Ms Forstater and her barrister, pointing out that the belief that both employment judges ruled isn’t worthy of respect, is identical with the doctrine of English law set out in Corbett v Corbett in 1970, which is still good law that applies whenever there is no Gender Recognition Certificate in force. I would consider applying to become an interested party if either of the cases goes to appeal, since the new legal doctrine set out in both, applied twice now, is that what I believe, which Christianity, Judaism, Islam, science and common sense all teach, is unworthy of respect. I have waited a long time for such an opportunity, ever since 2005 in fact, when I challenged unsuccessfully the implementation of the Gender Recognition Act 2004, as mentioned here:

    Stop gender fraud!

    At the end of A v Cornwall (reported on this blog), I posed the following question, in the following blog post:

    Gagged Dad’s law

    “Does treating somebody less favourably because of how strongly he or she holds and expresses his or her beliefs, amount to unlawful discrimination on the grounds of belief? Just as it would, that is, to treat him or her less favourably because of what he or she believed.”

    That is one of the questions on which A v Cornwall turned, though the judge did not explain well how.

    The judge in Forstater seems to take the line that a belief that might be worthy of respect in the abstract, ceases to be worthy of respect if the individual holding the belief takes that belief seriously enough to risk offending somebody on Twitter who finds it intolerable that the world contains those who do not share his or her contradictory belief.

    The fundamental objection to transgender behaviour may be expressed thus:

    “A man no more has an unfettered right to pretend to be a woman than the would-be burglar/confidence-trickster on your doorstep has the right to pretend he’s from the gas board, following a report of a leak, in order to gain entry to your home.”

    If the court had considered that objection in Goodwin v UK in 2002, history might have taken a different course, and a far happier one.

    In Birmingham CC v Afsar et al (in which I was the only defendant who won), the concerns of the Anderton Park 3 defendants, parents and community about the promotion of transgender dogma using the Princess Boy book outweigh the lesser concerns about “two dads” LGB normalisation.

    Ms Forstater has strayed onto a veritable battlefield, on which some fierce fighting is to be expected.

  2. From Christopher Whitmey

    Thank you for the link to the judgment. In view of the vigorous comments in the Twittersphere prompted by this case I strongly feel such commentators should first read the judgment. Having read it, I find it impossible to comprehend how a claim of refusing to accept transgenderism as a fact qualifies as a philosophical belief. Though I may not agree with all of the judge’s comments.

    This case has similarities with that of Dr David Mackereth. As a Christian, I have sympathy with the beliefs of both claimants. However, if someone asks me to address them by a particular name or pronoun I do not regard that as compromising my beliefs. I’m just being civil and respect the human: not endorsing their beliefs.

    • I, too, have mixed feelings about some aspects of the judgment; however, given the media controversy, I thought that the most useful thing I could do was to post as straightforward and impartial a note as I could conceive.

  3. Have I understood this case correctly, that the Claimant did not fail to use the pronouns preferred by anyone she encountered in the course of her work, and that the case turns entirely on what she said outside her work?

    The Claimant repeatedly states that she would not seek to give offence, and would behave with courtesy with respect to people’s preferred pronouns, etc. But at 90 the judge concludes from a single tweet (which isn’t addressed to Gregor Murray in the second person) that the Claimant ‘will’ refer to someone by the pronouns she considers factually correct, even if that results in degrading them. Is there really evidence for that conclusion in this case? Yes in that particular instance she did so – but *always*, so that her beliefs constitute ongoing degradation of others that is not worthy of respect?

    I’m not a lawyer, and I’m not asking rhetorically: that’s a request for elucidation from someone!

  4. Pingback: Law and religion round-up – 23rd February | Law & Religion UK

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